by Alan Tate
In 1986 the chief planning inspector’s report set out the task of inspectors. That task was described as “to obtain the material necessary to make an informed and reasoned decision or recommendation”.
The way this was to be done was also set out — “they hear evidence from the parties and they also seek such other additional information as they consider necessary”.
In general, it was then possible to lodge an appeal without detailed consideration of the case which would eventually be put, and indeed to do very little in the early part of the period between the appeal and the inquiry itself. Usually for many weeks or months nothing very significant occurred, but in due course an appeal date was fixed: the minimum notice of it was 42 days, and then, 28 days before the date of the inquiry, the local authority issued their statement.
Such statements were intended to give a clear indication of the council’s case and all the documents to which they were going to refer or rely on had to be listed and available for inspection. In major cases there was, of course, provision for pre-inquiry meetings and for the production of statements by appellants. Arrangements could also be made for the exchange of proofs prior to the inquiry in cases of the greatest complexity.
In practice these arrangements worked imperfectly. Pre-inquiry statements were frequently late or incomplete and all parties to appeals were prone, from time to time, to produce entirely new documents or new arguments in the course of the inquiry itself.
The difficulties faced by appellants in such circumstances were very great indeed. If an authority, in the course of an inquiry, produced new documentation or raised a planning objection to a proposal which had not previously been disclosed, then the appellant was faced with a choice of either dealing as best he could with the new material and arguments or seeking an adjournment. It is the essence of most planning appeals that the planning authority are seeking to prevent the development subject of the proceedings, while the appellant, on the contrary, wishes to make progress. An adjournment in these circumstances is always an unattractive course for the appellant who may have valuable property lying empty, a site subject to an option, or a business suffering inefficiency and loss of potential profit owing to inadequate premises. The fact that an appellant might receive costs arising from the adjournment of the inquiry itself would be of little comfort in these, quite usual, circumstances.
The new Planning Inquiries Procedure Rules are designed to deal with some of these problems. Two new statutory instruments, nos 944 and 945, were laid before Parliament in June and came into force on July 7. The first deals with inquiries procedure in cases where the Secretary of State is to determine applications, the second deals with those appeals to be determined by inspectors. The statutory instruments are supported and amplified by DOE Circular 10/88 (15/88 Welsh Office).
The new rules have been introduced with three main objectives in mind. They are:
(1) To make more effective use of inquiry time, clearing away issues which can be agreed, or do not need to be debated, and concentrating only on matters of dispute.
(2) To reduce the time taken to arrange inquiries by imposing a statutory timetable.
(3) To overcome the problems of late withdrawal of appeals by requiring much earlier action by appellants so that, it is hoped, appellants will realise much earlier that they do not wish to pursue a case and avoid situations where much inspector time is wasted by late withdrawals of appeals when it is too late for them to be allocated fresh cases.
The concept of a statutory timetable is central to the new procedures and is illustrated by two diagrams, showing timetabling provisions, which are included as Annex 3 and Annex 4 of Circular 10/88. The diagrams are reproduced and the first of them, Annex 3, will apply to the vast majority of appeals in the future.
It will be seen that the timetabling provisions effectively begin on the “relevant date”. That is the date when the Secretary of State — having received an appeal — notifies the appellant and the local planning authority that an inquiry is to be held.
In all cases the local planning authority must then serve a full statement of their case within six weeks of the relevant date. In the case of referred applications, the applicant must also serve a statement of case within the same period. In the case of a section 36 or section 37 appeal, however — the majority of cases — the appellant must serve a statement of his case three weeks after the local authority statement, that is to say within nine weeks of the relevant date.
Other interested parties required by the Secretary of State to provide a statement of case must serve that statement within four weeks of being required to do so and, in the case of referred applications, the Secretary of State will serve a statement of the relevant issues within 12 weeks of the relevant date.
Provision is made — as under the old rules — for a pre-inquiry meeting when this is considered desirable. The notification period for an appeal is cut from 42 days to 28 and proofs of evidence must be provided by the parties not later than three weeks before the opening of the inquiry or three weeks before the evidence is to be given in the case of larger, programmed inquiries. In all cases the inquiry should open where practicable within 20 weeks of the relevant date for inspector-decided appeals or within 22 weeks of the relevant date for Secretary of State-decided cases.
The timetabling provisions set out in Annex 4 relate to cases where the Secretary of State calls a pre-inquiry meeting in accordance with rule 5 of SI No 944.
The procedure is not materially different in the sense that, as in the case of Annex 3, a relevant date is established and the timetable runs from that date, with the whole of the period between it and the opening of the inquiry occupied in the assembly of information and with provision made for the parties to agree matters so far as possible.
The central point about both of the timetables is that the parties will be bound to produce statements at fixed times and produce their proofs three weeks before the evidence is due to be given. The early exchange of statements is intended to prepare the ground for much earlier exchanges of information, agreement on factual material and identification of the issues. Inspectors will have the power to require further clarification from either party of matters contained in statements, and where third parties have indicated a wish to participate in the inquiry they will be identified as a “principal party” and become subject to the same procedures as the appellant and the local planning authority.
In the past, much inquiry time has been wasted by witnesses having to read the whole of their evidence line by line. In the future, proofs will not be read, though a witness may be asked to produce a summary and to read that. He will, however, be cross-examined, both on the summary and on the main proof itself.
It is clear that the new rules will require a wholly different approach to appeals, both by local planning authorities and by appellants.
In the past, many authorities have organised their departments so that one officer may receive the planning application, visit the site, prepare a report for committee and make a recommendation while — many months later — a different officer appears at the inquiry and gives evidence on behalf of the authority. Under the new rules, authorities will have to have regard to the fact that they would usually have eight weeks to determine an application, and if they fail to do so an appeal can be lodged at once, leading to the relevant notice (and relevant date) very shortly after that and the issue of a full statement of case by them six weeks thereafter. The total time from the receipt of an application to the preparation of such a statement of case may be about 15 weeks in such cases.
This is, in fact, a generous period of time if it is properly used. If it is not properly used — if, for example, officers do not get down to writing reasoned reports within the first few weeks or if committees reject the considered advice of officers in the seventh or eighth week without sound planning reasons for doing so — then, clearly, the authority will be in grave difficulty.
Similarly, appellants will no longer be able to lodge appeals in the knowledge that it will be some months before they need to do anything effective. Once an appeal has been lodged, the appellant must expect to receive the council’s statement of case within about six weeks and will have to respond to it, usually in a further three weeks. Nine weeks of the “timetable” will then have passed, but the appellant’s evidence must be assembled, discussed with counsel and amended as necessary, and be printed in final form ready for exchange within a further eight weeks (or ten weeks in the case of Secretary of State-decided cases).
Prospective appellants would now be wise, certainly in major cases, to assemble their full team of solicitors, witnesses and counsel well before any appeal is lodged. They should, moreover, have a clear idea of their case and the work which will be necessary to prepare an effective proof of evidence before the relevant date is established.
The programme of consultations which is normally established by solicitors in major cases will now need to run from before the lodging of an appeal continuously to the time of the hearing. It will have to be so arranged to enable the team to respond to the council’s statement, to prepare their own statement, and to deal with draft proofs and amended proofs, well before the time the proofs need to be exchanged. Summary proofs and supplemental proofs will also need to be dealt with and the process will inevitably mean that appellants will be faced with much more substantial costs in the early part of the appeal process.
In the past, inspectors have often suggested, in major cases, that experts on either side should get together in order to agree so far as possible basic material relating to technical issues, such as highway considerations or shopping impact. Such meetings have, in the writer’s experience, been of the greatest possible assistance. Under the new rules, the inspector himself may call and chair such meetings or nominate a person to do so on his behalf. Following such meetings, the chairman will draw up a report of matters agreed and areas remaining in dispute.
The new system will have very great advantages if it is properly used, but it may create difficulties for expert witnesses. Such people are members of a team and it will be essential that counsel is properly advised about the agenda for any such meetings and other members of the team consulted as discussions proceed. An expert witness participating in such a discussion before the inspector himself is, in a real sense, giving evidence, and would be in the greatest difficulty in withdrawing from anything which he had said or agreed to if, subsequently, on consultation with other members of the team and counsel, he found that it was embarrassing or open to challenge.
The very limited experience of the new rules so far suggests that most authorities are trying to adhere to the timetabling provisions and are producing full statements of case when required. No doubt there will be cases where some “slippage” occurs, and it is to be hoped that the DOE will deal with that as firmly and effectively as possible.
The inquiry itself ought to be a much less tedious and more effective event than it has been in many past instances. Certainly the fact that all parties have made their case clear, submitted relevant documents and exchanged proofs should limit debate to the main issues. Expert witnesses, however — whether they be consultants or local government officers — will have to learn new techniques. They will often need to prepare to be cross-examined on the proofs, even though they have not been taken through them line by line by counsel while giving evidence-in-chief.
Personally, I have always found it very helpful to be taken through evidence by counsel, since the process tends to bring the evidence into focus and enables the witness to relate the text to supporting documents, so that when he is cross-examined — usually immediately after examination-in-chief — he is able quickly to refer to relevant passages.
In a busy practice, or in a busy planning office, witnesses may find that they prepare proofs and are then engaged in other cases prior to the opening of the inquiry and to cross-examination. A short “refresher course” by way of reading the proof aloud, in a quiet room, the day before evidence is given might prove to be time well spent!
Looking ahead, it seems that the new rules might have a profound effect on planning practice. Planning authorities will need to be sure that refusals are clear and soundly based. Undoubtedly, those authorities which have relevant and statutory local plans will be at a great advantage, and the new procedures might perhaps stimulate the majority of planning authorities who do not have local plans to prepare them as soon as possible. The Draft Planning Guidance issued in June by the Department of the Environment urges local planning authorities who have not done so to prepare local plans as the basis for sound and effective planning control, and we look forward to the final version of this advice.
All parties will be aware of the dangers of failing to comply with the statutory timetables now in force, since costs will undoubtedly be awarded much more often against parties whose behaviour — for example, in the late production of documents — causes adjournments. In the writer’s opinion, awards of costs for these reasons have been made too seldom in the past, with the result that much time and money has been wasted in the course of appeals, some of which have, frankly, been reduced at times to chaos.
The new system should lead to great improvements. Whether it does so or not will depend very much on the attitude of the parties and the firmness of the Secretary of State in seeking to keep people to the timetable. What is already clear, however, is that fixing statutory dates certainly does concentrate the mind!